The Right to Counsel Must be Safeguarded - March 2013

Access to appointed counsel in the American criminal justice system is a fundamental right, but it takes constant vigilance to make that right a reality.

For those of us who grew up watching cop shows climaxing with an arrest and the dramatic reading of Miranda warnings, it is hard to imagine a time when police officers did not routinely recite these words upon making an arrest: “If you cannot afford an attorney, one will be appointed for you.”

But until 1963, the right to counsel in state courts was no guarantee. This month marks the 50th anniversary of the landmark U.S. Supreme Court decision in Gideon v. Wainwright. In Gideon, the Court held that the Fourteenth Amendment to the U.S. Constitution requires state courts to provide appointed counsel for indigent defendants in criminal cases charging a serious offense. While federal courts have provided the right to counsel under the Sixth Amendment throughout our nation’s history, state courts did not all follow suit. It took 52-year-old Clarence Earl Gideon, writing with a pencil from his prison cell, to persuade the U.S. Supreme Court that our Constitution required nothing less.

Gideon had been convicted of burglarizing a Florida pool hall. Denied appointed counsel, he represented himself, and was convicted at trial and sentenced to five years in prison. After the Supreme Court granted him a new trial, Gideon’s appointed attorney found witnesses to contradict the prosecution theory of the case and conducted vigorous cross-examination, persuading the jury to acquit him. A lawyer made all the difference in the outcome.

The ideals articulated in Gideon v. Wainwright are fundamental to the values of the U.S. Department of Justice and the U.S. Attorney’s Office. Our criminal justice system, and our confidence in its results, depend on effective representation for both the prosecution and defense. While all of us want to see guilty defendants held accountable for their crimes, a fair trial depends on a vigorous and thorough defense. Defendants have a right to question potential jurors to prevent bias, to effectively cross-examine prosecution witness, to find and present witnesses of their own should they choose to do so, and to present thoughtful opening statements and closing arguments. Someone untrained in the law finds himself on an uneven playing field when forced to perform all of those tasks himself against an experienced prosecutor. Our system of justice depends on an adversary system where the lawyers stand on equal footing. We can all feel more confident that justice is served when we know that defendants have access to effective lawyers to represent them.

Today, new challenges confront the indigent defense system. Budget cuts threaten to underfund indigent defense systems in some states, including Michigan, where bipartisan reform efforts are underway. The current problem is not denial of representation, as in Gideon, but of “under-representation,” which occurs when indigent defense systems are hampered by insufficient resources, overwhelming caseloads and inadequate oversight. But the truth is, an inadequate indigent defense system presents added costs to taxpayers. When the justice system fails to get it right the first time, we all pay, often for years, for new filings, retrials, and appeals, while the real perpetrator of a crime goes free. Not only is criminal defense a fundamental right, but it makes economic sense.

The Justice Department is working to help states address the challenges to an effective indigent defense system. Among other efforts, the Department is helping defense systems to implement model standards, collecting data to better understand the barriers defendants commonly face in securing effective representation and is working to help state and local stakeholders better integrate the indigent defense function into criminal justice resource planning.

Across the country, many of the U.S. Attorneys are also engaging with the defense bar to address areas of mutual concern. For example, here in Michigan, we’re partnering with the Federal Defender’s Office and the court to hold public forums on the importance of jury service and jury diversity. The Justice Department has also been working with Federal Public Defenders and counsel appointed under the Criminal Justice Act to develop and implement best practices for dealing with electronically stored information during the discovery process.

Through this important work, U.S. Attorney General Eric H. Holder, Jr. and all of us at the Justice Department are committed to ensuring that even our poorest citizens realize the promise of Gideon because, as the Supreme Court said so eloquently in1963,“lawyers in criminal courts are necessities, not luxuries.”

Barbara L. McQuade
United States Attorney
Eastern District of Michigan